Justice Breyer Weighs Retirement
The Roberts Court, April 23, 2021 Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photograph by Fred Schilling, Collection of the Supreme Court of the United States
Image courtesy of Fred Schilling, Collection of the Supreme Court of the United States
By Christian Rubio
Supreme Court Justice Stephen Breyer has seen a lot of screen time on news outlets lately, but not just for the release of his new book, The Authority of the Court and the Peril of Politics. 83-year-old Breyer has recently faced heavy criticism from liberals for his decision not to retire while a Democratic president is in office to appoint a young, ideologically favorable successor. By appointing a young justice, President Biden could have an impact on the Court for decades to come, much like former President Trump did with his historic three appointments in just one term.
There is a stark contrast between the heated political turmoil surrounding the oldest justice on the Court and the charming, mild-mannered attitude with which he responds to inquiries about his future.
“There are many factors. In fact, quite a few. And the role of the court and so forth is one of them and the situation, the institutional considerations are some and — and I — I believe — I can’t say I’d take anything perfectly into account, but in my own mind I — I think about those things,” said Breyer to Fox News Sunday’s Chris Wallace on Sunday.
When Wallace asked him point-blank, “So why didn’t you retire?” Breyer simply smiled and said, “I didn’t retire because I had decided on balance I wouldn’t retire.”
Breyer’s unwillingness to wade into the politics of his retirement considerations publicly, however, is not to be understood as unawareness or naïveté. He was asked by the New York Times about former Chief Justice Rehnquist’s claim that “deciding when to step down from the court is not a judicial act,” and it is therefore not inappropriate for justices to consider the political consequences regarding their successor. “That’s true,” Breyer responded.
Breyer himself also emphasized to the Times that his lack of desire to discuss the specifics of retirement publicly was not representative of any private lack of awareness.
“I’ve said there are a lot of considerations. I don’t think any member of the court is living on Pluto or something,” Breyer said.
In the interview with Wallace, Breyer also discussed the importance of keeping the Supreme Court, and the judiciary at large, untainted by the increasing polarization and toxicity surrounding every other aspect of American politics.
“[Alexander Hamilton] thought the Court should be there because there should be somebody…who says when the other two branches of the government have gone outside the confines of [The Constitution],” Breyer said.
Wallace also tried to get opinions from Breyer about hot-button issues, such as Senator Mitch McConnell’s seeming hypocrisy regarding the nominations of Merrick Garland in 2016 and Amy Coney Barrett in 2020, as well as the Court’s refusal to hear former President Trump’s challenges to the 2020 election results. Justice Breyer politely and charmingly dodged these questions, making it all the more clear that he will not allow political polarization and outrage to color his reputation as a Supreme Court Justice.
